University of Newcastle upon Tyne v IC and BUAV [2011] UKUT 185 (AAC) (“BUAV”)

In University of Newcastle upon Tyne v IC and BUAV [2011] UKUT 185 (AAC) (“BUAV”) the UT held that s. 3(2) should be given a wide interpretation. First, at [2123], it considered the correct interpretation of s. 3(2):

“21. The [FTT in BUAV] explained the effect of section 3(2) in the following terms:

“[47] The effect of this subsection is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”

22. I accept that as an accurate analysis of the impact of section 3(2). Indeed, any other construction would be inimical to the purpose of FOIA, a statute which is, after all, designed “to make provision for the disclosure of information held by public authorities” (according to its long title).

23. In a passage which was central to its conclusions the tribunal then reasoned as follows:

“[47] ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.””

The judge went on at [27] to state that “I have included the lengthy paragraph [47] of the tribunal’s decision in its entirety above (at paragraph 23) for one simple reason. I regard the approach set out there to the question of whether a public authority “holds” information as an accurate statement of the law.”

At [41-43], the UT noted that it was consistent with the purpose of FOIA that s. 3(2) be given a wide interpretation:

“41 … As Mr Thomas submitted, a key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third
parties. Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test … That construction is supported by the analysis in The Law of Freedom of Information, by John Macdonald QC et al (2nd edn, OUP, 2009), where the authors note that the effect of section 3(2) is that FOIA “will have a very wide application, subject to the specific statutory exemptions provided for within Part II of the Act” (p.69, para. 4.76). There are, in addition, two further factors which reinforce my conclusion on this point.

42. First, the logic of Mr Pitt-Payne’s argument is that in practice the question as to whether a public authority “holds” particular information for the purposes of FOIA in the first place may frequently have to be addressed by reference to the precise terms of some statutory prohibition on disclosure in other legislation. That would encourage public authorities to take the issue of whether the information was “held” as a preliminary point far more frequently than is currently the case, which would both over-complicate and delay proceedings before the Commissioner and the tribunal below. I do not believe that that would have been the intention of Parliament.

43. Second, as the tribunal emphasised, it is important not to lose sight of the larger picture – not just the particular arrangements in place at the University in this case, but the overall architecture and purpose of FOIA. The tribunal agreed with Mr Thomas’s bold submission that the result for which the University contended “was an affront to common-sense” [56]. Whether or not that is right, and I am not sure I would have put it in quite such stark terms, I am reasonably confident that if the ordinary officious commuter on the Tyne & Wear Metro were presented with the scenario in the present case, their response would be along the lines of: “Has the University got the information BUAV requested? Of course it has. But presumably there may be some defences it can use so it doesn’t have to disclose some or all of it?” In the present case section 44 is one such exemption, and the only exemption which was considered by the
Commissioner and tribunal below as a preliminary issue.”
(emphasis added)

The clear logic of the UT’s reasoning in the above passage is that s. 3(2) FOIA will only rarely be the issue on which an appeal turns, and the question of whether information should be withheld or disclosed will – in the majority of cases – fall to be determined by the Part II exemptions, as is consistent (in the UT’s words) with the intention of Parliament.

Next: Department for Health v IC and Lewis [2015] UKUT 159 (AAC)